ARTICLE XLVIII.—OF JURIES AND TRIAL BY JURY.

 

IN RELATION TO THE PREPARATION OF JURY LISTS AND THE DRAWING OF JURIES.

 

Section 1.  Each Governor, in concert with some Judge of a court of record, shall prepare semi-annually, in the months of March and September, a list of the names of fifty persons, being native Hawaiians, and fifty other persons, being foreigners by birth, or of foreign parentage, residing within their respective gubernatorial divisions who, in the opinion of such Governor or judge, are fit to serve as jurors;** provided, that no lists of foreign jurors shall be prepared in Hawaii or Kauai.  Each list shall be signed by the governor and judge, and sent to the clerk of the circuit court; but in the Island of Oahu, the list shall be sent to the clerk of the Supreme Court, and in the Island of Hawaii it shall be sent to the first clerk.  Said clerks shall write each name on a separate piece of paper, and deposit the same in appropriate boxes; the Hawaiian names being kept in separate boxes from the foreign names.

           

Section 2.  The respective clerks, at least twenty days before the sitting of any court, shall draw from the appropriate box the names of twenty-four native and twenty-four foreign jurors, provided, that no foreign jurors shall be drawn in Hawaii and Kauai.  Such drawing shall be had in the presence of a Justice of the Supreme Court, or a circuit judge, or the Governor of the Island, who shall certify to the regularity of the proceedings.

           

Section 3.  Whenever it may be necessary or proper, for the trial of any cause in the circuit court for the third and fourth judicial circuits, to have a jury composed wholly or in part of foreigners, the presiding judge of such circuit court, for the time being, shall summon from among the foreigners residing within such circuit, a sufficient number of persons to act as jurors in such case.

           

Section 4.  The clerks shall, within twenty-four hours of the drawing of any jurors as aforesaid, transmit to the marshal of the Kingdom, or the sheriff of the Island, the names of all jurors drawn in the manner aforesaid, in order that such jurors may be duly summoned.

           

Section 5.  Sections 1185, 1186, 1187, 1188, 1190, 1191 and 1210 of the Civil Code, and all parts of Acts inconsistent herewith, are repealed.

           

§1196.  In all civil cases in which one party is a native Hawaiian, and the other a foreigner (alien or naturalized), the jury shall be composed of an equal number of natives and foreigners, who shall be drawn alternately from the boxes containing the names of such natives and foreigners, as have been summoned to attend the court as jurors in such cases:  provided, always, that either party, with the consent of the other, may waive his right to a mixed jury.

           

§1197.  All native Hawaiians, accused of any crime, shall be tried by a jury composed entirely of natives; and all foreigners, by a jury composed of foreigners, who shall be drawn from the array of native and foreign jurors, respectively, returned to serve at the term.

           

§1198.  At the trial of any case requiring a jury, in the Supreme Court, or in any circuit court, the clerk of the court shall draw such jury, to the number of twelve, from the box or boxes containing the names of such persons as have been duly summoned to attend as jurors; and if any of the said twelve be challenged and set aside, he shall continue to draw from said box or boxes until twelve impartial jurors are obtained, when they shall be sworn as the jurors for the trial of such cause.

           

§1199.  Whenever a sufficient number of jurors duly summoned, do not appear, or cannot be obtained to form a jury, the court may order the marshal, or his deputy, to summon from among the bystanders, or from the circuit at large, so many persons qualified to serve as jurors as shell be sufficient.

           

§1200.  The marshal, or his deputy, shall summon the number so ordered, and return their names into court.  Every person so summoned shall attend forthwith and serve as a juror, unless excused by the court; and for every neglect or refusal so to attend, shall be answerable to the court in the same manner as jurors regularly summoned as hereinbefore provided.  The persons as summoned shall be subject to challenge as other jurors.

           

§1201.  Every person arraigned and put on his trial for any offense punishable with death, shall be entitled peremptorily to challenge ten of the persons drawn as jurors for such trial and no more.

           

§1202.  In all cases, civil or criminal, either party may challenge any juror drawn for such trial, for cause to be assigned to the presiding judge, who may determine the validity of the objection urged against the competency of such juror, or submit the question to the determination of three triors to be appointed by him.

           

§1203.  No jury, for the trial of any case, civil or criminal, shall be less than twelve in number; but when nine of such jury shall agree upon a verdict, they may render the same, and such verdict shall be as valid and binding upon the parties as if rendered by all twelve.

           

§1204.  Whenever any jury shall return into court, and state that they cannot agree upon a verdict, the court may, in its discretion, discharge such jury, or remand them to the jury-room for further deliberation.

           

§1205.  The Chief Justice of the Supreme Court shall have power, in any intricate case, or case involving artistical or professional knowledge, or skill, pending in such court, upon the application of either party, to summon the adverse party to appear and show cause, if any he has, why a special jury should not be struck for the trial of such case.

           

§1206.  If the adverse party do not appear in obedience to the summons, or, appearing, fail to assign any satisfactory cause to the contrary, and the Chief Justice shall be of the opinion that the ends of justice will be best reached by such a jury, he may order a special jury to be struck.

           

§1207.  Special juries shall be struck in the following manner:  The Chief Justice shall appoint a time and place for striking the jury, at which the party applying for such jury shall notify the adverse party to attend.  The clerk of the Supreme Court shall, at the time and place appointed, draw off a full list of the names of the jurors last furnished him for the trial of civil cases, (native, foreign or mixed, as the case may be) when the parties in person, or by attorney, beginning with the plaintiff, shall alternately strike off from said list, one name, until only twelve names remain on the list; and those twelve shall constitute the jury to try the particular cause for which they were struck.  If either party shall fail to attend at the time and place of striking such jury, or shall neglect to strike out any names according to the foregoing provisions, the clerk shall strike for him.

           

§1208.  The twelve jurors chosen as provided in the last preceding section, shall be summoned in like manner as other jurors, and shall be in like manner answerable to the court for non-attendance.  They shall not be liable to challenge for any cause whatever.

           

§1209.  The expense of striking a special jury shall be paid by the party applying for the same, and shall not be taxed in the costs of the suit.

           

§1210.  Repealed by Act of 1870, above.

           

§1211.  Every such juror, if duly summoned at least forty-eight hours previous to the holding of the court, shall be punishable for non-attendance, by fine not exceeding one hundred dollars, in the discretion of the court, for each day that he fails to attend without reasonable cause; and he may be brought up by summary attachment for that purpose.

 

TO LIMIT THE TRIAL BY JURY IN ACCORDANCE WITH ARTICLE 7TH OF THE CONSTITUTION.

           

Section 1.  That from and after the date of the passage of this Act, all actions of debt or assumpsit which shall have been begun, or may hereafter be begun, before a police or district court, in which the amount claimed before such police or district court shall be less than fifty dollars, and which shall be appealed to the circuit court of any island, or the Supreme Court of the Kingdom, shall be tried by the court without the intervention of a jury.

           

Section 2.  Be it further enacted that, whensoever any case may have been appealed from any such police or district court, if the appellant shall be the plaintiff in the action, and it shall be apparent to the court to which such appeal is taken, that the claim has been made in the lower court for fifty dollars or more, without any reasonable expectation of recovering as much as fifty dollars, but merely for the purpose of bringing the same before a jury, the appellate court may, in its discretion, adjudge the costs of the jury to be paid by such appellant.

           

Approved this 3d day of January, A.D. 1865.

 

 

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